THE ELECTRONIC CORPORATION OF INDIA LTD. AND ANR.versusM. SHIVANI AND ANR.

                        [2019] 3 S.C.R. 523                              523


      THE ELECTRONIC CORPORATION OF INDIA LTD.                           A
                     AND ANR.
                         v.
                     M. SHIVANI AND ANR.
                  (Civil Appeal No. 2560 of 2019)                        B
                         MARCH 08, 2019
    [UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
      Service Law:
      Appointment/Recruitment – Age-relaxation for recruitment –         C
Granted to those who had worked or working with the employer
Corporation – Entitlement to such relaxation to the employees
(respondents) who were working with the employer-Corporation
through an outsourcing agency – Held: In view of the terms of the
advertisement for the recruitment, the respondents were not entitled
                                                                         D
to the age relaxation.
      Allowing the appeal, the Court
       HELD: The record indicates that the respondents were
engaged through an outsourcing agency. Going by the terms of
the advertisement, the respondents were not entitled to have             E
any age relaxation. The advertisement was issued on 19.12.2017
and the last date for submission of applications was 05.01.2018.
Challenge itself was raised by the respondents by filing Writ
Petition on 02.01.2018. The Single Judge of the High Court was,
therefore, right and justified in rejecting the challenge. By the
time the matter came up before the Division Bench, the period            F
was already over. The Division Bench did not consider the
submissions whether the respondents could, as a matter of right,
claim relaxation in age limit. The assessment made by the Division
Bench was completely incorrect. [Paras 8, 9] [527-F-G; 528-A]
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2560               G
of 2019.
      From the Judgment and Order dated 08.03.2018 of the High Court
of Judicature at Hyderabad for the State of Telangana and the State of
Andhra Pradesh in Writ Appeal No. 94 of 2018.
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524            SUPREME COURT REPORTS                         [2019] 3 S.C.R.


A           Annam D. N. Rao, A. Venkatesh, Rahul Mishra, Advs. for the
      Appellants.
            The Judgment of the Court was delivered by
             UDAY UMESH LALIT, J. 1. This appeal challenges the
      correctness of the judgment and order dated 08.03.2018 passed by the
B     High Court of Judicature at Hyderabad for the State of Telangana and
      the State of Andhra Pradesh in Writ Appeal No.94 of 2018.
            2. The matter arises out of Writ Petition No.382 of 2018 filed by
      the Respondents in the High Court submitting inter alia that they had
      been working with the Appellant-Corporation through an outsourcing
C     agency since 2010; that they had passed ITI and completed National
      Apprenticeship Certificate in the Appellant-Corporation itself; that the
      Appellant had issued Notification No.38 of 2017 for recruitment to the
      posts of Tradesman-B (WG-III) in different trades; that the upper age
      limit was prescribed as 28 years as on 30.11.2017; that there was
D     relaxation in the age limit upto 40 years for those who had worked or
      were working with the Appellant-Corporation as Senior Artisan/Junior
      Artisan with ITI qualification plus NAC or ITI qualification plus
      experience of tenure based contract. It was the submission of the
      Respondents that they were seeking similar extension of benefit of age
      relaxation as they had worked through an outsourcing agency.
E
              3. In the affidavit-in-reply by the Appellant-Corporation it was
      stated that 3064 applications were received pursuant to the Notification
      to fill up 40 posts and that the request of the Respondents could not be
      considered as it would have had a cascading effect as many similarly
      situated candidates, who had been working through outsourcing agencies,
F     may claim similar relaxation.
             4. The advertisement in question was issued on 19.12.2017 and
      the last date for filling up applications online was 05.01.2018. The age
      limit as prescribed in the advertisement was 28 years for unreserved
      candidates but the age limit could be relaxed upto 40 years as stated
G     above. The aforesaid Writ Petition was filed by the Respondents on
      02.01.2018 and was dismissed by the Single Judge of the High Court on
      04.01.2018 with following observations:-
               “It is the case of the petitioners that they have been working
            with the first respondent Corporation through an outsourcing
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 ELECTRONIC CORPORATION OF INDIA LTD. v. M. SHIVANI                           525
              [UDAY UMESH LALIT, J.]

      agency since 2010. They passed ITI and completed National               A
      Apprenticeship Certificate (Electronic Mechanical Trade) in ECIL
      only. While so, the second respondent issued Notification No. 38
      of 2017 for the recruitment to the post of Tradesman-B (WG-III)
      in different Trades. The last date for submission of applications
      through online is 05.01.2018. The upper age limited prescribed is
                                                                              B
      28 years as on 30.11.2017. However, the relaxation of maximum
      age limit is allowed up to 40 years for those who worked or working
      with ECIL as Senior Artisan/Junior Artisan with ITI qualification
      plus NAC or ITI qualification plus experience of tenure based
      contract. The present Writ Petition is filed seeking extension of
      the same benefit of age relaxation to the petitioners also, as they     C
      worked through an outsourcing agency.
        The notification was issued long back and the applications were
      sought to be accepted from 20.12.2017. Though there is some
      grievance to be redressed in relation to the petitioners, since the
      procedure for acceptance of applications is through online basis,       D
      no relief can be granted to the petitioners who approached this
      Court at the last moment seeking relaxation of age limit. Obviously,
      the software so far developed does not accept the applications
      which did not contain any code number which is available for the
      persons who worked or working with ECIL on tenure based
      contract. In the circumstances, no relief can be granted to the         E
      petitioners.
         The Writ Petition is, accordingly dismissed at the admission
      stage. There shall be no order as to costs.
          As a sequel thereto, the miscellaneous petitions, if any, pending   F
      in this Writ Petition shall stand closed.”
       5. The Respondents, being aggrieved, challenged the decision of
the Single Judge by filing Writ Appeal No. 94 of 2018. A counter affidavit
was filed on behalf of the Appellants in said Writ Appeal submitting:-
       “……that in Electronics Corporation of India Limited there are          G
      two types of contract employees. The first category is those
      employees who are directly employed by ECIL, who work for
      some time and for whom an employee code is allotted and a
      Service Certificate will also be given by ECIL. The Corporation
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526            SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A           has an employer and employee relationship with such employees
            for the period of contract. The second category is those employees
            who are engaged through Manpower Supplying Agencies, who
            work in short durations in projects undertaken by ECIL. For such
            employees no employee code will be allotted and the Corporation
            does not issue any Service Certificate to those employees, they
B
            being the employees of the Manpower Supplying Agencies. The
            Corporation engages hundred of such employees through the
            Manpower Supplying Agencies depending upon the temporary
            need. With such employees there is no employer and employee
            relationship with the Corporation and they work as per the terms
C           and conditions of their employer i.e. Manpower Supply Agency,
            with whom they are employed as per the advertisement issued by
            the Corporation the first category of employees are eligible for
            age relaxation, but the second category of employees are not
            entitled to such age relaxation and since the appellants herein
            belong to the second category, they are not entitled to claim any
D
            age relaxation in this case. If age relaxation to those appellants is
            extended, then there will be hundreds of such applicants, who are
            employed through Manpower Supply Agency and they also will
            seek such age relaxation and in such a case it will be difficult for
            the Corporation to conduct selection.”
E            6. The Division Bench of the High Court by its judgment and
      order dated 08.03.2018 allowed the appeal and passed following
      directions:-
            “In view of the above, we are of the considered opinion that the
            petitioners are entitled to be considered for the posts in question
F           and also entitled for the age relaxation up to the age of 40 years.
            Consequently, we hereby set aside the order dated 04.01.2018
            passed in WP No.382 of 2018. Accordingly, the Writ Appeal is
            allowed.
            Consequently, the respondents shall permit the petitioners to
G           participate in the selection process to be conducted on 11.03.2018.
            The petitioners are directed to file their applications by tomorrow
            5 PM.”
            7. The decision of the Division Bench of the High Court is presently
      under appeal. While issuing notice, the operation and implementation of
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 ELECTRONIC CORPORATION OF INDIA LTD. v. M. SHIVANI                           527
              [UDAY UMESH LALIT, J.]

judgment and order under appeal was stayed. Though the service was            A
effected on the Respondents, none entered appearance on their behalf
and the matter was repeatedly adjourned to enable the Respondents to
enter appearance and contest the matter, as is clear from the following:-
      a) On 30.11.2018 it was recorded that, according to the office
         report, the Respondents had been served in the matter and            B
         by way of last chance the matter was directed to be listed on
         07.12.2018.
     b)    On 07.12.2018 since none had entered appearance, fresh
          notices were directed to be issued. In addition, dasti service
          was also permitted.                                                 C

      c) On 18.02.2019 the matter was called and this Court noticed
          that according to the office report dated 16.02.2019
          Respondents were served in the matter and yet none had
          appeared on their behalf. It was, therefore, directed:-
                                                                              D
            “By way of last chance, we adjourn the matter to 05.03.2019.
            If the respondents choose not to enter appearance, the matter
            shall be disposed of ex-parte on the next date of hearing.”
      Despite repeated opportunities, the Respondents have chosen not
to appear. We, therefore, proceed with the matter ex-parte.                   E

       8. Two features emerge in the matter. First is about the nature of
engagement of the Respondents. The record indicates that they were
engaged through an outsourcing agency. Going by the terms of the
advertisement the Respondents were, therefore, not entitled to have any
age relaxation. Secondly, the advertisement was issued on 19.12.2017          F
and the last date for submission of applications was 05.01.2018.
Challenge itself was raised by the Respondents by filing Writ Petition
No.382 of 2018 on 02.01.2018. The Single Judge of the High Court
was, therefore, right and justified in rejecting the challenge. By the time
the matter came up before the Division Bench, the period was already          G
over. The Division Bench did not consider the submissions whether the
Respondents could, as a matter of right, claim relaxation in age limit.
Without considering said aspect of the matter, the Division Bench
proceeded to pass the directions as quoted above.

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528             SUPREME COURT REPORTS                     [2019] 3 S.C.R.


A            9. Having gone through the record, in our view, the assessment
      made by the Division Bench was completely incorrect. We, therefore,
      allow this appeal, set aside the judgment and order under appeal and
      restore the order dated 04.01.2018 passed by the Single Judge of the
      High Court in Writ Petition No.382 of 2018.
B            10. No order as to costs.


      Kalpana K. Tripathy                                      Appeal allowed.



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